10 years back, morphine was sold legally from suppliers to wholesalers and to pharmacies and

physicians, with few restrictions. To curb the rising abuse of narcotics, Parliament, in 2019 passed
the Narcotic Act which made it a crime to sell the drug ''not in or from the original stamped
package.'' This meant sales of the narcotic could only be in or from, a registered, sealed package,
and only those authorized could break the seal and distribute the narcotic. Another provision of the
act prohibited any sale ''not in pursuance of a written order of the purchaser'', which prohibited any
sale without a written order form from an authorized, registered seller to an authorized, registered
buyer.

Justin sold morphine to a single buyer on at least two occasions. In one sale, he sold ''10 grains'' of
morphine, and on the next day, he sold ''8 grains'' to the same person. He was convicted of two
charges of selling morphine not in or from the original stamped package one for the separate
transactions on different days. He was also convicted for one charge of selling morphine ''not in
pursuance of a written order of the purchaser.'' He was sentenced to five years in prison and an RM
5,000 fine for each count.

He appealed, and the case made its way to the Court of Appeal. His legal defense was that the entire
crime was, but one transaction and he should be punished for one charge, not three. He cited Article
5 of the Federal Constitution’s double jeopardy clause arguing that the two transactions over
separate days were but one sale and thus should be only one charge. Then the charge for selling the
morphine without a written order stemmed from the same set of transactions.

Advise him
Issue

 Whether the charges against Justin are constitutional.

 Whether the three convictions against Justin constitute double jeopardy.

 Whether Justin can plea for autrefois convict for the subsequent offence of selling morphine
''not in pursuance of a written order of the purchaser''.

Law

          The Federal Constitution incorporates protection against double jeopardy by including it as a

fundamental right under Article 7(2) which laid down that a person who has been acquitted or
convicted of an offence shall not be tried again for the same offence. It means that all persons are
immune to repeated trials for the same offence. This provision basically gives protection against
double jeopardy as a constitutional right. Based on Article 7(2) of FC, a person shall not be sued on
the same set of facts repeatedly if there is a final decision of a competent court.

          Section 302(1) of CPC on the other hand provides that “A person who has been tried by a Court
of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while the
conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on
the same facts for any other offence for which a different charge from the one made against him
might have been made under section 166 or for which he might have been convicted under section
167.” This section gives the same protection as Art 7(2) of the FC. It also provides that a person who
was once convicted or acquitted, shall not be tried again for the same offence. It means that no one
should be put in double jeopardy for the same facts. Hence, if an accused has been tried for a certain
offence and convicted or acquitted, they cannot be tried again for the same offence on the same
facts.

          As for the issue of a plea of autrefois convict, section 302 of CPC and Art 7(2) of the FC show
that certain elements or conditions need to be satisfied in order to invoke the plea of autrefois
acquit or autrefois convict. However, it is important to note that the plea of autrefois is not available
where the subsequent charge is for a different charge although based on the same facts.

          There are a few elements that need to be fulfilled in order to invoke the plea of autrefois
acquit or autrefois convict. First, there must be the existence of a valid trial. Secondly, the previous
trial should have been by a court of competent jurisdiction. A competent court is a court that has the
jurisdiction to deal with a particular offence. If the court which held the first trial was not competent
to try the charge therefore plea of autrefois could not be upheld. For both elements,  the accused
must prove to the court that he has been previously tried on the same charge by a court of
competent jurisdiction. Based on the case of Sau Soo Kim v Public Prosecutor, the Federal Court
stated that on the facts the plea of autrefois acquit would not have been available to the accused at
the trial had he raised it, as the first trial had been declared a nullity. Based on this principle, it is
obvious that the plea of autrefois acquit would not be extended to an accused whose prior trial had
been pronounced null and void.

          Thirdly, the result of the previous trial should have been either a conviction or an acquittal. In
order to plea for autrefois acquit or autrefois convict, the accused must prove a final verdict of
acquittal or conviction recorded by a court of competent criminal jurisdiction. The accused must
have been either acquitted or convicted. It is only then that an accused can take the plea of s 302 of
the Criminal Procedure Code in order to bar a second trial for the same offence. Mere discharge of
the accused does not amount to an acquittal. In Uthaykumar a/l Ponnusamy v Public Prosecutor,
the court held that a ‘discharge’ does not release or relieve the accused from suspicion. It does not
amount to a verdict of not guilty.

          The fourth element that must be fulfilled is that the previous and subsequent offences must be
the same. A person cannot be tried for an offence for which he/she could have been convicted in a
previous trial. In the case of Jamali bin Adnan v Public Prosecutor, the accused was convicted and
sentenced in the sessions court for robbery with deadly weapons. Subsequently, he was charged in
the High Court for being in control without the authority of deadly weapons and ammunition. It was
held that in order to plead autrefois convict, the accused must prove that the second trial must be
either for the same offence or on the same facts for any other offence. In Saravanan a/l KS Somu v
Timbalan Menteri Dalam Negeri Malaysias & Ors, it was held that the doctrine of double jeopardy
could only apply where a person has earlier been acquitted or convicted and is charged again for the
same offence.

Application:

          In the present case, Justin was convicted for three charges including two separate transactions
of selling morphine not in or from the original stamped package and the other charge was selling
morphine ''not in pursuance of a written order of the purchaser”. He was sentenced to 5 years
imprisonment and an RM5000 fine for each count. In this case, we can say that Justin will not be
protected under Art 7(2) as all the three charges convicted against him were done in one same trial
and there was no existence of any trial prior to the current trial. Other than that, Section 302 of CPC
also cannot be applied in Justin’s case since the two charges of selling morphine not in or from the
original stamped package shall not constitute only one offence but two and since he was not
charged in a separate trial, there shall be no issue of Justin being charged for the same offence and
he may not apply the doctrine of double jeopardy as provided in the case of Saravanan.

          In order for Justin to invoke autrefois conviction before the court and be disposed of the
charge, he needs to prove all four elements. As for the first until third elements, we can presume
that it has been not fulfilled as Justin in the current situation was convicted of three charges in a
single trial, and there is no proof that he was previously tried on the same charge. Thus, there is no
conviction and acquittal in the previous trial. Therefore, the first three elements are not fulfilled.

          As for the last element, Article 7(2) and Section 302 have provided that in order for Justin’s
conviction to be considered double jeopardy, the convictions made must be within the same facts. In
this current situation, we can see that the second offence that he was charged with is different from
the first charge due to the fact that the weight of the morphine on the first and second days was
different. It is submitted that the selling of morphine on two different days is also considered
different facts even though it was sold to the same person. Although it seems like the same offence,
since the facts of both charges are not the same then we can say that Justin is charged with two
different offences. 

          In regards to Justin’s third charge which is selling morphine ''not in pursuance of a written
order of the purchaser,” if we compare to the prior two charges, this act can be regarded as a
different offence as the ingredients and set of facts between the charges are different. Thus, the rule
of double jeopardy may not be applicable in Justin’s situation and the fourth element is not fulfilled. 
In this case, we can conclude that it was not possible for Justin to plea autrefois convict because he
failed to fulfil all four requirements.

Conclusion:

          To conclude, all the three convictions against Justin do not constitute double jeopardy and it is
therefore constitutional. Thus, Justin cannot plead for autrefois convict